The legal controversy over the appointment of a replacement to the Senate seat previously held by President Barack Obama is likely drawing to a close. In the process of resolving the controversy, the U.S. Supreme Court also clarified their interpretation of a key portion of the Seventeenth Amendment regarding vacancies in Senate seats. This topic has been relevant lately, particularly following the 2008 election cycle. When Senator Obama was elected President, his incoming administration including numerous sitting Senators including Vice President Joe Biden, Secretary of State Hillary Clinton, Secretary of the Interior Ken Salazar, and, of course, himself. Despite its seemingly straight-forward language, the Seventeenth Amendment required a certain amount of parsing to ensure these senatorial appointments would fulfill its procedural requirements.
The Seventeenth Amendment, ratified in 1913, in addition to providing for the direct election of senators, altered the procedure for filling vacancies in that office. The amendment provides that, in the event of a vacancy, the governor must issue a “writ of election” to hold an election for a permanent replacement to fill the seat. The state legislature may empower the governor to make a temporary appointment, but the appointee may only serve until the special election is held to fill the vacancy. A date for a special election must be set by the governor, but the amendment does not specify when exactly it must be held. Continue reading